Madras High Court
N.Swamiduraivelu vs The State Of Tamil Nadu on 19 October, 2011
Author: T.Raja
Bench: T.Raja
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/10/2011 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD).No.10834 of 2011 and M.P.(MD)No.1 of 2011 N.Swamiduraivelu, Additional Superintendent of Police (Crime), Tuticorin. ... Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Principal Secretary, Home (Pol.II), St. George. Fort, Chennai. 2.The Director General of Police, Tamil Nadu, Chennai. ... Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus directing the respondents to include the name of the petitioner in the panel of Additional Superintendent of Police fit for promotion to the post of Superintendent of Police for the year 2011 in accordance with the seniority without reference to the censure dated 25.08.2011 the minor punishment of censure dated 25.08.2011 as a bar for such consideration. !For Petitioner ... M/s.M.Ajmal Khan ^For Respondents... Mr.T.R.Janarthanan Additional Government Pleader :ORDER
This writ petition has been filed by N.Swamiduraivelu for the issuance of a Writ of Mandamus directing the respondents to include the name of the petitioner in the panel of Additional Superintendent of Police fit for promotion to the post of Superintendent of Police for the year 2011 in accordance with the seniority without reference to the minor punishment of censure dated 25.08.2011 as a bar for such consideration.
2. The learned Counsel appearing for the petitioner submits that when the petitioner was serving as Deputy Superintendent of Police, Thiruchendur Sub- Division, Tuticorin, a charge memo was issued under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. After receipt of the said charge memo, the petitioner has submitted his explanation. The only charge issued for which he was called upon to submit his explanation alleged that there was an alleged impersonation of one Perumal, son of Muthusamy, Kayalpattinam by his brother Sakthivel in the criminal case in Arumuganeri Police Station Crime No.20/2007. When the said incident was brought to the notice of the petitioner, he failed to take appropriate criminal action against the said Sakthivel, son of Muthusamy. As a result, he failed to maintain absolute integrity and devotion to duty. After receipt of the explanation, the second respondent kept the disciplinary proceedings in cold storage. Subsequently, by order dated 25.08.2011, the punishment of censure was imposed against the petitioner under Rule 17(a) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, 1955, when he was anxiously waiting for further promotion as on 01.07.2011.
3. Therefore, the only submission made by the learned counsel appearing for the petitioner, at this juncture, before this Court is that it has been repeatedly held by the Hon'ble Apex Court as well as this Court that the pendency of the proceedings under Rule 17(a) is not a bar for considering the name of the employee for promotion. While that is the settled law of the country, when the petitioner has become eligible for further promotion to the post of Superintendent of Police, the respondents cannot keep him out of the zone of consideration even though he was facing departmental proceeding under Rule 17(a) of the Tamil Nadu Civil Services (Disciplinary and Appeal) Rules, 1955. Having kept him away from the zone of consideration on the basis of pendency of 17(a) proceedings, even after the order of punishment of censure dated 25.08.2011 as the check period of one year also has been removed by a recent judgment of this Court in the case The Deputy Inspector General of Police, Thanjavur Range, Thanjavur and another v. V.Rani, reported in 2011 (3) CTC 129, he prayed for a direction to the respondents to include his name in the panel of Additional Superintendent of Police fit for promotion to the post of Superintendent of Police for the year 2011 in accordance with the seniority without reference to the censure dated 25.08.2011.
4. No counter affidavit has been filed. The learned Additional Government Pleader appearing for the respondents would submit that the name of the petitioner will be considered provided there is no other departmental proceedings pending against the petitioner to include his name in the panel of Additional Superintendent of Police fit for the promotion to the post of Superintendent of Police for the year 2011. Admittedly, this is the case where the petitioner has suffered a punishment of censure imposed by the Director General of Police. Though the said punishment was imposed as a result of departmental proceedings initiated under Rule 17(a) of the Tamil Nadi Civil Services (Disciplinary and Appeal) Rules, 1955, the name of the petitioner need not be kept away from the zone of consideration. It has been settled time and again by this Court, in the case of A.Karunanidhi v. Government of Tamil Nadu, rep. by its Secretary, Public Works Department, Chennai, reported in (2006) 2 MLJ 494, that pendency of proceeding under Rule 17(a) is not a bar for considering the name of an employee for promotion. The above said ruling has been followed in an another order of this Court in W.P.(MD) No.4736 of 2010, dated 08.04.2010. It is useful to extract paragraphs 4 and 5 of the said order which reads as under:
"4.In similar circumstances, this Court in A.Karunanidhi v. The Government of Tamil Nadu, rep. by its Secretary, Public Works Department, Fort St. George, Chennai - 600 009 reported in 2006 W.L.R. 346, by relying upon the said instructions has stated that pendency of charge under Rule 17(a) is not a bar for the purpose of consideration and inclusion of such person to the next promotion post. In the said decision, Honourable Mr.Justice N.Paul Vasanthakumar by referring various judgments of the Hon'ble Supreme Court including that of Delhi Jal Board v. Mahinder Singh reported in MANU/SC/0553/2000:(2000) 7 SCC 210 and C.O.Arumugam and Others v. the State of Tamil Nadu and others reported in 1990 (1) SLJ 185, allowed the writ petition directing that the petitioner therein shall be included in the panel for the year 1997-1998."
5. In C.O.Arumugam and Others v. the State of Tamil Nadu and others reported in 1990 (1) SLJ 185, the Hon'ble Supreme Court has held as follows:
"As to the merits of the matter, it is necessary to state that every civil servant has a right to have his case considered for promotion according to his turn it is a guarantee flowing from Article 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principle. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
5. In view of the above said two rulings as the pendency of 17(a) proceedings is not a bar for considering a name of a Government servant for further promotion, the respondents should have included his name in the panel of Additional Superintendent of Police fit for promotion to the post of Superintendent of Police for the year 2011. Be that as it may, in any event, the petitioner suffered only a punishment of censure by order dated 25.08.2011 even the check period of one year for censure has been removed by a latest judgment of the Full Bench of this Court in the case of The Deputy Inspector General of Police, Thanjavur Range, Thanjavur and another v. V.Rani, reported in 2011 (3) CTC 129 the issue raised in this Writ Petition is no more res ingegra. It is useful to extract paragraph 28(5) as under:
"28(5). Consequently, the embargo put on the right of Government servant for being considered for promotion for a further period, after the period of minor punishment is over, in the name of 'check period' viz., one year in the case of censure and five years in the case other minor punishments is illegal and impermissible under the Statutory Rules."
6. In view of the above settled legal position, there cannot be any embargo for one year in the case of censure for being considered for promotion for a further period, accordingly, the writ is granted in favour of the petitioner. Consequently, the respondents are directed to include the name of the petitioner in the panel of Additional Superintendent of Police fit for promotion to the post of Superintendent of Police for the year 2011 in accordance with seniority without reference to the censure. The writ petition is therefore allowed. No costs. Consequently, connected miscellaneous petition is closed.
srm To
1.The Principal Secretary, Home (Pol.II), St. George. Fort, Chennai.
2.The Director General of Police, Tamil Nadu, Chennai.